Lefthandbull v. Hartley et al

Filing 28

ORDER Adopting and accepting the Report and Recommendation 27 . Granting 24 Motion to Dismiss. Defendants Steve Hartley, Philip Shaufler, Larry Watkins, John Smoky Kurtz, Dennis Mckenna, Timothy Ritter, Kristi Moore, Robert Steinbeck and Trevor W illiams are dismissed from this action in their official and individual capacities, with prejudice. Defendants Juan Martinez and Ken Moore are dismissed from this action without prejudice due to Plaintiffs failure to effect service within the time l imit of Fed. R. Civ. P. 4(m), and pursuant to D.C. COLO.LCivR 41.1 for failure to prosecute. The dismissal of Defendant Leonard Vigil on August 17, 2009 was without prejudice, and the dismissal of Defendant Rodney D. Fouracre, also on August 17, 200 9, was with prejudice. Because no Defendants remain in the case, the Amended Complaint and cause of action are dismissed without prejudice as to Defendants Juan Martinez, Ken Moore, and Leonard Vigil, and with prejudice as to all other Defendants, the parties to pay their own costs and attorneys fees. A separate Judgment shall be entered pursuant to Fed. R. Civ. P. 58(a), by Judge Zita L. Weinshienk on 5/12/10.(gmssl, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Senior Judge Zita Leeson Weinshienk Civil Action No. 09-cv-01345-ZLW-CBS RALPH LEFTHANDBULL, Plaintiff, v. STEVE HARTLEY, et al., DENNIS McKENNA, JOHN "SMOKEY" KURTZ, R. STEINBECK, TREAVOR WILLIAMS, JUAN MARTINEZ, TIMOTHY RITTER, P. SHAUFTER, L. WATKINS, KEN MOORE, LEONARD VIGIL, KRISTI MOORE, and RODNEY D. FOURACRE, Defendants. _____________________________________________________________________ ORDER _____________________________________________________________________ The matter before the Court is the Motion To Dismiss (Doc. No. 24) filed by Defendants Steve Hartley, Philip Shaufler,1 Larry Watkins, John "Smoky" Kurtz, Dennis Mckenna, Timothy Ritter, Kristi Moore, Robert Steinbeck and Trevor Williams. The motion was referred to Magistrate Judge Craig B. Shaffer pursuant to

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Defendant Shaufler's name is misspelled as "Shaufter" in the Complaint's caption.

D.C.COLO.LCivR 72.1C. On April 2, 2010, the Magistrate Judge issued his Recommendation that the Motion To Dismiss be granted (Doc. No. 27), and that this action be dismissed in it entirety. No party filed objections to the Recommendation. Having reviewed the record and the Magistrate Judge's Recommendation, the Court is satisfied "that there is no clear error on the face of the record."2 Although Plaintiff did not file a response to the Motion To Dismiss, the Motion To Dismiss was served upon Plaintiff on October 26, 2009, at his current address of record, and the Court's November 5, 2009, Minute Order directing Plaintiff to respond to the Motion To Dismiss by December 4, 2009, also was served upon Plaintiff at his current address of record and has not been returned to the Court as undeliverable. Despite the lack of any response briefing, the Magistrate Judge's Recommendation sets forth an extremely thorough and well-reasoned analysis of Plaintiff's claims and of the arguments raised in the Motion To Dismiss. The Court agrees with, and accepts and adopts, the Recommendation in its entirety. The Court notes that Defendants Leonard Vigil and Rodney D. Fouracre were previously dismissed from this action on August 17, 2009 (see Doc. No. 13). The Order dismissing Defendants Vigil and Fouracre did not specify whether those dismissals were with or without prejudice, and the Court now clarifies that defendant Vigil was dismissed without prejudice and Defendant Fouracre was dismissed with prejudice.

See Fed. R. Civ. P. 72(b) advisory committee's note; Summer v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); Thomas v. Arn, 474 U.S. 140, 150 (1985).

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Accordingly, it is ORDERED that the Motion To Dismiss (Doc. No. 24) is granted, and Defendants Steve Hartley, Philip Shaufler, Larry Watkins, John "Smoky" Kurtz, Dennis Mckenna, Timothy Ritter, Kristi Moore, Robert Steinbeck and Trevor Williams are dismissed from this action in their official and individual capacities, with prejudice. It is FURTHER ORDERED that Defendants Juan Martinez and Ken Moore are dismissed from this action without prejudice due to Plaintiff's failure to effect service within the time limit of Fed. R. Civ. P. 4(m), and pursuant to D.C. COLO.LCivR 41.1 for failure to prosecute. It is FURTHER ORDERED that the dismissal of Defendant Leonard Vigil on August 17, 2009 (Doc. No. 13) was without prejudice, and the dismissal of Defendant Rodney D. Fouracre, also on August 17, 2009 (Doc. No. 13), was with prejudice. It is FURTHER ORDERED that because no Defendants remain in the case, the Amended Complaint and cause of action are dismissed without prejudice as to Defendants Juan Martinez, Ken Moore, and Leonard Vigil, and with prejudice as to all other Defendants, the parties to pay their own costs and attorney's fees. It is

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FURTHER ORDERED that a separate Judgment shall be entered pursuant to Fed. R. Civ. P. 58(a). DATED at Denver, Colorado, this 12th day of May, 2010. BY THE COURT:

___________________________________ ZITA LEESON WEINSHIENK, Senior Judge United States District Court

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